Symposium: More at stake than cake — dignity in substance and process

Elizabeth Sepper is a professor of law at Washington University School of Law. She co-authored an amicus brief of public accommodation law scholars in support of the commission in this case.

For more than half a century, state public accommodation laws had protected against denials of dignity and equal treatment in the marketplace. And commercial entities’ First Amendment claims against public accommodation laws had always failed, regardless of whether they were advanced as free speech, association or free exercise rights. By even granting cert in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court threatened to shake the foundations of antidiscrimination law.

But Monday’s decision proved far from explosive. The same-sex couple lost. A majority of the court decided that Masterpiece Cakeshop’s owner Jack Phillips was entitled to neutral and respectful consideration of his religious beliefs, and Colorado just hadn’t provided it.

While less than satisfying, Masterpiece sends two important signals. First, the advance of economic libertarianism within religious liberty doctrine is faltering. Justice Anthony Kennedy, for a majority of the court, rejected a market-oriented view of antidiscrimination law and reaffirmed dignity as the central justification for equality in public. The justices acknowledged that, for same-sex couples, there is more at stake than cake. Second, the ideal of a moralized marketplace where businesses express and impose religious beliefs is gaining ground. As in Burwell v. Hobby Lobby Stores Inc., the Masterpiece court entered the fray over profit and piety, only to side with the business.

Free exercise libertarianism falters

Masterpiece and many of its amici advanced an argument rooted less in religious liberty doctrine than economic libertarianism. Market access, they said, is — and should be — the goal of antidiscrimination law. Unless pervasive discrimination or monopoly bars individuals from alternative providers, the state can’t justify prohibiting discrimination. In most places then, gays — and presumably religious, racial and ethnic minorities — should be satisfied, because the market ultimately delivers them cake, photos and flowers.

Controversies over wedding vendors seemed particularly ripe for free exercise libertarianism. In 2014, Hobby Lobby showed the Supreme Court’s receptiveness to corporate exemption, even though it didn’t fully embrace libertarianism for religious businesses. But employers — like Hobby Lobby — provide the exclusive pipeline to benefits, fair wages and safe working conditions for their employees. Public accommodations, by contrast, offer goods and services in competition with other businesses. And consumers, unlike employees, have no relationship of dependency with the average vendor. They usually can go somewhere else.

In Masterpiece, Kennedy refused to take the libertarian bait. He constructed discrimination in terms of dignity, not markets. And rightly so. State public accommodation laws have never depended on the existence of monopolies. Emphasizing the equal citizenship of gay people, Kennedy wrote: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” Although Kennedy might be thought of as a knee-jerk supporter of gay rights, Chief Justice John Roberts also joined the opinion. And none of the concurring opinions raised the functioning market to query whether antidiscrimination could apply to the bakeries here. (Justice Neil Gorsuch’s concurrence hinted at skepticism that Masterpiece’s refusal actually violated Colorado’s public accommodation law, but not based on the availability of alternative bakeries.)

Similarly, the Supreme Court did not accept the invitation of several amici to distinguish sexual orientation from race by reference to the market. Jim Crow and the pervasive market exclusion of black people sets race discrimination apart, they said, from sexual orientation in 21st-century Colorado.

Six of the seven justices joining the majority took sexual orientation to be on the same plane as race, religion or other prohibited bases of discrimination. Kennedy observed: “It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals.” Justice Elena Kagan’s concurrence underscored the parallel between protected traits: “As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.” Even Gorsuch’s concurrence took religious and sexual orientation discrimination to be legally equivalent (though he then proposed to allow both). Race and sexuality were not meaningfully different for the Supreme Court’s analysis of public accommodation law.

The majority opinion reiterated twice that, under the general rule of the Supreme Court’s precedents, antidiscrimination laws can prevent business owners, even if they have religious or other objections, from denying goods and services to people based on their race, religion, sex or sexual orientation. In the absence of perceived indicia of hostility, I suspect the court would require Masterpiece to do just that. Kennedy wrote that expanding religious exemptions beyond those for clergy marrying couples might create “a community-wide stigma inconsistent with the history and dynamics of civil rights laws.” The link from sexual orientation to sex, religion and race public accommodations law is significant, because those legal obligations have never brooked such religious exemptions.

Morality in the marketplace

The immediate outcome of Masterpiece, however, is that as in Hobby Lobby, a for-profit business has escaped regulation through religious liberty (this time under the free exercise clause). The case represents a step toward a moralized marketplace, where institutional and corporate actors express and impose their own religious identity.

The conservative justices in particular weighed in heavily for thick moral identity in the marketplace. According to Kennedy, statements by commissioners that refused to welcome corporate religion reflected impermissible hostility toward Phillips’ beliefs. Inappropriate were comments, for example, encouraging compromise and indicating that Phillips could believe and act on his beliefs outside his business. An ideal of the market as a neutral place for exchange between and among people of different beliefs was itself hostility to religion.

Unsurprisingly, Gorsuch and Justice Samuel Alito painted a picture of a market with ample room for corporate religion, going so far as to compare the retail sale of a cake to the consumption of the Eucharist. Justice Clarence Thomas provided an almost breathless description of the bakery:

Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries.

What all this means remains to be seen. Under current law, Phillips is free to operate his business exactly as Thomas says. No First Amendment challenge is required for him to express his religious identity in these ways and to demand that employees and customers fall in line. But, under the Supreme Court’s precedents, as the proprietor of a for-profit storefront bakery selling to the general public, Phillips should also expect to comply with antidiscrimination law (and a host of other regulations).

Kennedy left us with only this guidance: “[T]hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” After Masterpiece, human-rights commissions would be well advised to handle religious objectors with kid gloves — to avoid “undue disrespect” for their beliefs. They should also avoid “subjecting gay persons to indignities” in the market. To do that, as the majority hints, requires applying public accommodation law to religious objectors.

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.